July 11, 2011

Social Security's Disability Judges Come Under Scrutiny

Two congressional committees took aim today at the Social Security Administration for how its administrative law judges decide disability claims, following reports that a handful of judges fall well outside the norm.

During a hearing, lawmakers sparred over the scope of the problem and whether Social Security’s leadership has enough authority to discipline judges who apply disability standards incorrectly. Rep. Howard Coble (R-N.C.) said many of the judges are conscientious and hard-working, but that they enjoy a “near-complete lack of accountability” because of the cumbersome process for removing them.

Coble is chairman of a House Judiciary subcommittee on the federal courts that held the joint hearing with a House Ways and Means subcommittee on Social Security. He said Congress should consider several changes to the law governing the Social Security judges, including how they are selected and how they are reviewed.

Democrats expressed fear that the hearing was a veiled attempt to advocate for benefits cuts, and they urged Republicans in the majority to move slowly. “We should be very cautious about making changes that could deny beneficiaries due process,” said Rep. Xavier Becerra (D-Calif.), the top Democrat on the Ways and Means subcommittee.

In May, The Wall Street Journal highlighted the example of David Daugherty, an administrative law judge hearing claims for disability benefits in West Virginia. During one recent six-month period, Daugherty approved payments in every case he decided, compared to a nationwide average of about half that. He was placed on administrative leave.

This month, the Transactional Records Access Clearinghouse, a research group at Syracuse University, released an analysis suggesting other disparities. The group and the Social Security Administration later put out rival public statements over the accuracy of the findings.

Social Security Commissioner Michael Astrue told lawmakers today that 58 administrative law judges have been disciplined since he became head of the agency in 2007. The cause, he said, is often that they failed to decide enough cases. To remove a judge, the agency must go through a process run by the U.S. Merit Systems Protection Board, which adjudicates many employment claims involving the federal government.

Comments

I'm a disability physian who reviews claims for initial SS disability and for CDRs (Continuing Disabilty Review)i.e., allowances that come up for re-review after about 5 years. The CDRs that were originally allowed via the ALJs are notoriously lenient allowances and the rules concerning continuing those disability allowances are even more lenient and it drives us crazy e.g., a claimant with back pain with an o/w normal exam can theoretically be on disability for life thanks to an incomprehensible ALJ decision. We have to prove that there has been "significant medical improvement" in oder to get them off disability. That's impossible with a c/o back pain and an o/w unremarkable physical exam--past and present. About 90% of CDRs are continued overall. Many of these CDR cases could be easily denied if we could treat them as brand new cases. This whole process of SS disability determination is not just flawed, it is beyond the scope and the I.Q. of our Government just like Gov't control and delivery of health care in general.

Any Attorney who specializes in SS claims knows the standard, ie: two automatic declines with the second in front of an ALJ. Usually at this point the applicant decides to hire an attorney. Again the client/applicant can be turned down (more likely than not) and the process begins on the 2nd or 3rd appeal. This usually depends on the applicant's age, 49 1/2 and 50 is the clincher. Any younger and the applicant can look forward to more declines dependent on their access to medical care for evidence of the disability, or better yet the right medical care and a doctor's willingness to fill out the correct forms. More often than not a doctor will not undertake that task and believes that just because they make a note in their file on the patient, it makes it so.

As for those of you winning about it being a taxpayers burden, well.. you pay into this insurance in the event you or a loved one who may (or may not) also be paying the premiums are able to collect if they become too ill to work. It functions in the same manner as SS upon retirement. It is suppose to be a safety net for a sector of our society who cannot work to care for themselves, and who otherwise could not afford ANY medical care, much less how its scrapped out to the needy in this country now.

I am an advocate for socialized medicine and education. That does not mean I believe in Marxism or a traitor to this country. It simply means that I believe this great country of ours can afford to take car of those who are incapable of doing so and, as a civilized nation, we should not even consider shoving them to the curb.

The analysis is a good idea. The Representative quoted about "due process" is seeking a particular outcome. That needs to stop (on both sides).
As with any legal system, some judges will be too soft and some will be too strict. Today's disability landscape is extremely complex, but if the average judge is around 50/50 and some are 100/0 (or 0/100), personal decisions and beliefs of judges are overriding the system. As a taxpayer, I want only the deserving to be paid. As a human, I want all the deserving to be paid.

The Problem is, the Judges are probably flawed, the Claimants are probably flawed but the Social Security System is also flawed. No Social Security System, Disability or not can be financed when Contributions by Upper Bracket Wage Earners are capped. That is the Root of the Problem. First, capitalise the System, then deal with everyone who behaves out of Line. Justice will prevail.

While it is important that the judges have proper oversight, it does not seem appropriate to focus only on Judge Daugherty. What about the judges on the opposite end of the spectrum (i.e., those who deny most of their cases)? I feel that this is just as worrisome, as it prevents disability benefits applicants from receiving the money they so desperately need.

As an auditor, I firmly believe that the judges should be subject to more oversight and I am also curious that Daugherty was disciplined for approving 100% of claims for payments when the national average is half that. Doesn't that translate to mean that on average half of all claims for payment are denied? That explains the why many lawyers have found a niche business in appealing disability claims. Did anyone else read John Grisham's The Rainmaker and draw a parallel pattern of denials here?